What is "Discovery" in a divorce?

In every divorce proceeding, both parties have the right to be fully apprised of all the facts related to their marriage.  Full disclosure of information is required to ensure that both parties have equal access to the relevant information to make educated decisions about their divorce.  Generally, the Court orders an exchange of information unless the parties can resolve their dispute privately.  Almost any Information is accessible through discovery if it is reasonably calculated to lead to the discovery of admissible evidence.

Discovery can take a variety of forms: written requests for information and documentation; requests for admissions; subpoenas; depositions; and expert reports.

Parties are permitted to serve the following forms of written discovery:

-          Interrogatories – Written questions for the opposing party to answer;

-          Notice to Produce – Requests for specific documentation; and

-          Request for Admissions – Questions that call for the answering party to affirm or deny a statement.

A deposition is an opportunity for parties in a civil lawsuit to obtain testimony from a witness under oath prior to trial.  Depositions can also be written, but in most divorce cases where depositions are utilized, the party subject to the deposition will be asked to sit and answer a series of questions posed by the opposing party’s attorney in front of a court reporter who makes a record of everything that is said. Deposition is an effective discovery tool to prepare for trial as it may reveal relevant information, in addition to utilizing the witness’s deposition statements at trial.  Consult with your attorney to determine if a deposition is warranted in your matter.

Experts can also be retained in the discovery process to write and present a report to the Court at trial.  Typically, experts in a divorce context will conduct appraisals, business valuations, opine on a parties’ employability or what is in the best interests of children.  Again, you should consult with an attorney to determine if an expert should be retained to assist with your matter.

There are potentially significant consequences for parties that refuse to participate in the discovery process, including an award of counsel fees and striking the pleadings of the non-cooperative party.

Contact Maleski, Eisenhut & Zielinski, LLC if you have any questions regarding the divorce process